dotCommonweal

Justice Kennedy's Logic Puzzle

Everyone knows the power granted by Justice Kennedy’s middle position on the Supreme Court. Indeed Paul Clement, the advocate for the plaintiffs in Sebelius v. Hobby Lobby, seemed to direct most of his arguments toward the concerns he imagines Kennedy to have about the case.

But even in Clement's most hopeful fantasies, he could not have imagined the gift that Kennedy would present him during questioning of the Solicitor General. Kennedy introduced the idea that, by the logic of the government’s case -- in some future scenario, at the calamitous bottom of a slippery slope -- for-profit corporations could be forced to “pay for abortions.”

When following the live blogs, I thought surely this must have been reported incorrectly, but here it is from the transcript:

JUSTICE KENNEDY: Under your view, a profit corporation could be forced – in principle, there are some statutes on the books now which would prevent it, but – could be forced in principle to pay for abortions.

Verrilli’s first response is the obvious and correct one: the hypothetical scenario is already illegal and not relevant to this case.

GENERAL VERRILLI: No, I think, as you said, the law now – the law now is to the contrary.

Now maybe Justice Kennedy’s modus operandi is to present false slippery slope arguments and then see how advocates squirm. During oral arguments about the Affordable Care Act, the court famously discussed if the government could mandate that citizens buy broccoli. It was a memorable line, and perhaps useful in some way. But it was a true hypothetical, since Congress has not enacted a statute against forcing citizens to pay for broccoli.

In yesterday’s case, though, the format was:
- “If the government compels A, what is to stop it in theory from forcing B?”
- “But sir, the Congress has already outlawed government from forcing B.”

In other words, a hypothetical “slippery slope” situation was presented for which a law already exists to define precisely the stopping point that makes the slope not slippery. It’s no wonder Verrilli was confused.

Verrilli eventually admitted than in some theoretical land, yes, there is nothing in principle to stop the scenario about which Kennedy asked. He hastened to repeat, though, “There is no law like that on the books. In fact, the law is the opposite.” Even despite Verrilli’s accurate protestations, the exchange was – rhetorically at least – an embarrassing moment for the government’s case.

Then Chief Justice Roberts pressed further, sensing the opening created by Kennedy’s question. “Isn’t that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that’s what we had before us.”

As I understand it, though, the court was not tasked with answering the question of whether the plaintiffs are correct that certain pharmaceuticals classed as contraceptives are actually abortifacients. The court was not tasked to define whether pregnancy begins at fertilization or implantation, nor the mechanisms by which pharmaceuticals work. In the same way, the court was not tasked in U.S. v. Lee (1982) to define the precise way in which Social Security is a burden on the conscience of the Old Order Amish or in Employment Division v. Smith whether peyote really is a hallucinogenic necessary for anyone’s free exercise of religion.

Verrilli responded by citing the plaintiffs’ “sincere” belief in this “difficult case,” while making clear that state and federal law reflect line-drawing on the side of the government’s position. Furthermore, he returned to the implications of ruling on the accuracy of their religious beliefs about the matter: “the implications for entanglement and making the judgments when you move past that group, the administratability problems, and the problems of inviting the kinds of claims that are predictably going to impose harms on third parties.”

After this response, questioning moved on to Justice Alito’s “kosher or halal butcher vs. humane treatment of animals” analogy, one which has the great benefit of being legally relevant and possible to imagine happening (unlike Kennedy’s hypothetical).

But for Verrilli, it was too late. By raising the hypothetical of paying for abortions, Justice Kennedy introduced both a scenario that is already illegal and an issue of embryology and theology that the court is not tasked to decide (and indeed cannot decide). Kennedy's hypothetical also just so happens to coincide with exactly the scenario that the plaintiffs want people to fear – even though it is already illegal. It was no surprise, then, that Clement’s first point in his rebuttal centered on abortion.

The phrase ‘paying for abortions’ did one final disservice to our public discourse about the Affordable Care Act. Employers are not paying for specific health care services. They are required to make available health insurance providers that provide access to certain services, which employees may or may not use. The degrees of cooperation here are both morally and legally relevant, and to conflate the distance between health care premium support and the procedure itself obscures our understanding of insurance and the law in question.

Now the court may decide, in the end, that any degree of cooperation with what a ‘person’ (in this case, a corporation) views as religiously forbidden is too much cooperation for the government to coerce. They would have Thomas v. Review Board as a potential precedent there. The Tenth District used Thomas to explore whether the “substantial burden” or “substantial pressure” on free exercise exhibited in Thomas would also apply to Hobby Lobby.

The Tenth District made the analogy to the irrelevance of “line-drawing” in Thomas: “Once the plaintiff drew this line [between making the steel to be used in tanks and making the weapons themselves], it did not matter whether the line was “acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”

But regarding the Hobby Lobby case, the court might draw its own line about degrees of cooperation, splitting off Thomas (in which the worker would physically be manufacturing material for weapons of war) from other scenarios that require, for example, pacifists and conscientious objectors to pay overall taxes, some of which go toward the waging of war. Is paying health insurance premium support more like paying taxes or is it more like manufacturing steel? And there are, of course, several other types of rulings possible.

But however the court rules, Justice Kennedy’s logic puzzle about abortion did not aid the process of getting there.

Comments

I'm not sure which of your comments are directed at me, but it seems that some of them are. One of the main questions of this case is whether a corporation has free exercise claims, not an individual person standing before God. The very idea of a corporation distances that entity from the individual person. That's the point. Maybe it feels to Mr. Green that he personally is being compelled to do something, but the legal question is whether the corporation can be compelled.

Thanks, Mr. Peppard - think some of McDonald's bloviating was directed at my comments which merely were meant to describe the possible legislative move (e.g. paying for abortions) in the current political context (or a future political context). Think that too much focus is put on a very unlikely event and some seem to forget that even a SCOTUS decision can be overturned by future congressional action.

To allow extreme examples or fantastical possibilities to drive the reasoning in this case appeared to be like the tail wagging the dog, IMO.

But, McDonald appears to be another of those *self-righteous, I alone have the truth* types. And how has that approach working for you to date?

Why on earth wouldn't corporations have religious freedom? They certainly have other constitutional rights. I mean, if a corporation operated by a black CEO faced racial discrimination in getting contracts on that basis, no one (certainly not Commonweal) would be heard arguing that a mere corporation can't have a "race" and can't be subject to racial discrimination. Nor would anyone dispute the fact that corporations have free speech rights, which is why Congress can't require the New York Times to publish pro-Republican editorials.

But when religion is at issue, even some religious folk are suddenly eager to voluntarily surrender other people's constitutional rights just because there's an economic transaction somewhere in sight.

Duh - race is not a choice; religion and conscience decisions are choices. Free speech is one right (which legally has been extended to both individuals and corporations); religious freedom is another right (that has legally been extended to individuals; not corporations). You are mixing apples and oranges when it comes to legal concepts.

Why is religion an issue - because historically religion has been used to justify all sorts of evils - from slavery, discrimination, racism, sexism, imperialism, etc., etc.

It would seem that religion (in its best sense) entails supporting the common good and dignity of all in a diverse world. When religion is used to deny, discriminate, exclude, or restrict the common good or the dignity of others (which includes their right to religious freedom, conscience, etc.) then it is no longer religion (in the best sense of the word)

I do think that corporations can have some religious freedoms via their owners, management, and employees.

I don't think that this rises to the level of an unconstitutional violation of people's religious freedom. Hobby Lobby believes that being a conduit via which their employees use their compensation to purchase contraceptions that Hobby Lobby believes may cause abortions.

At a certain point, those who want to seperate themselves from the sinful world have the responsibility to carry the burden create a space that is acceptable to them. Those who are unwililing to serve the public must organize as private organizations rather than public accomodations. Those who are unwilling to pay income taxes that will partially go to pay for the military have to ensure that their taxable income is low enough that they don't pay income taxes. Those who don't want to go to an integrated school have to create private schools, and their colleges might not be elligible for financial aid. Finally, those who are worried that their employees will use their insurance for things that they find morally repugnant shouldn't provide insurance to their employees.

I read some misunderstanding that the ACA has, built into it, a prohibition against government funding of abortion. It has no such provision written into the ACA and Obama, Sebilius and the Democrats wanted it that way. The deflection that the HYDE Amendment prevents such government payment for abortion only applied to MEDICAID dollars and the ACA is not under medicaid rules or restrictions because the policies are offered by private insurance companies and are separate from Medicaid. The fact that you can sign up for Medicaid through an exchange does not turn the ACA into a medicaid program. So if one enrolls in a plan though the exchange(non-medicaid) there is nothing to prohibit government funding of abortion if Sebilius wants to do so under the guise of labelling it "women's health care" or "reproductive healthcare".

What Obama and Sebilius used to bribe Stupak and his pro-life Democrats was an EXECUTIVE ORDER written and signed by Obama that stipulates the ACA will not pay for abortions, but all that is needed to end or lift an Executive Order is another Executive Order to cancel the previous one. It does not require a vote from the Congress of either or both chambers.

Also, abortion rights Congressman and Senators have made it plane that if they had the advantage of number they would not renew the Hyde Amendment if they had the opportunity to pass a budget without the Hyde Amendment attached. They have made it plain as day they consider abortion as "women's reproductive health care" and that it is legal and has been re-affirmed by the SCOTUS and thus there is not reason to restrict government funding of abortion.

I also want to address the notion that science and medicine has determined pregnancy has not occurred until implantation. This is only the view of those that support abortion rights within the medical and science fields. It is in no way unanomous among all doctors(including OBGYNs) and scientists.

If you read a statement by the American College of Obstetricians and Gynocologists, you may read a claim by the organization that Implantation is determined to be the point of the beginning of pregnancy, but that is only the position of the top officers that exist within ACOG. It is not a statement reflecting the views of all OBGYNs or even most. The fact is ACOG has never taken a comprehensive survey of all OBGYNs to know this, yet they speak as if they have. The same thing is true with national organizations that represent Pediatricians.

Until you can know how many OBGYNs there are in the country and what percentage of that population holds to the idea that Implantation is the start of human life, not conception(which is in many textbooks for Gynocology and Embryology) you cannot say, as a fact, implantation is the scientific and biological or medical beginning of another human life.

What you have in a zygote is a new, living human life, until natural death of that zygote(or embryo or fetus or infant etc.) occurs. If there is no implantation then that is a death sentence for that human life, but until then you have a living human identity(identity separate from the mother) alive and actual(not potential) human life.

Those that support the view that life doesn't begin till implantation are giving there opinion or belief of when human life has significants, which is different that what biological and medical science has shown and proven a new human life starts at conception. However "significance of human life" is an issue of philosophy, morals and ethics, not fact. There was a time many decades ago where "negroes" were considered less, biologically significant(or human) because of their biological characteristics which many believed did not live up to the idea of "significant human life" and such was extolled as "scientific".

Now we know however that this was based on prejudice and bigotry, not science or medicine.

The same is true here. Those that believe zygotes, embryos and fetuses have less human significance say human life doesn't start till implantation. Some even believe a human life hasn't started and is only "potential" life till the time of actual birth and considered "viable" by the OB.

So the idea that human life or pregnancy or potential human life doesn't begin till implantation is not written in stone. It is a collective belief by those in the medical and biology who want to legitimize the notion that "if it doesn't implant"(because it has been prevented from doing so) then an actual death or bringing about the end of another human life has not taken place.

Just some information about the contraceptive methods in question, for those who might be concerned: The "morning after pills" work by preventing ovulation and, to a lesser degree, fertilization (if ovulation has already occurred). If a woman is already pregnant, they will not cause an abortion. I know the data on the copper T IUD pretty well, and it is conclusive that the mechanism of action is prevention of fertilization, not prevention of implantation. They have looked for fertilized eggs in the tubes of women who have these IUD's, and they just don't find any....Thus it too is a true contraceptive, not an abortifacient. The Mirena IUD also appears to prevent fertilization as its primary mechanism of action. It theoretically could prevent implantation as well because the small amount of hormone in it causes a reversible "atrophy" of the uterine lining while it is in place. For this reason, it is often used to control bleeding problems in women who don't even need contraception. In any case, as a contraceptive, prevention of fertilization appears to be by far its primary mode of action.

I am a prolife family doctor. I believe that life begins at conception, but I also know that most conceptuses don't survive. I have seen prolife material that is factually incorrect or greatly exaggerates some potential side effects of contraceptives, and it makes me cringe because I think that undermines our credibility and our position. If I were bound never to render any medical treatment that even had potential to take a human life, I would not be able to do practically anything; because the fact is we kill people every day with medical treatment, whether from acne medication or tonsillectomies. We just try to kill fewer people than Mother Nature. I am not saying this to be flippant, just to stay sane. I have worried enough times whether the antibiotic I gave grandma for her bladder infection is going to put her into kidney failure that I feel that I, like most other physicians, am just trying to do the best I can.

Since I have digressed, I will say a few other random things. 1) The absolutely overwhelming majority of my patients and people I know DO make a distinction between contraception and abortion, and they DO NOT consider them to have equivalent moral weight. Whether that is right or wrong, that is the facts on the ground. 2) I do not like slippery slope arguments. They usually cut either way, and definitely do in this case. We are all on a slippery slope all the time, and we have to deal with that somehow. 3) I liked the observation about our having the responsibility to create a moral space around us that is acceptable to us. Gave me something to think about as far as my own actions in some domains. 4) I read Commonweal blogs all the time but almost never comment, because it's intimidating for a number of reasons. One of those is that it's unpleasant when contributors to the blog attack each other. We can have fruitful and spirited debates without getting personal about it. Let's keep Commonweal one space where the tone is respectful and maybe even loving....

So if one enrolls in a plan though the exchange(non-medicaid) there is nothing to prohibit government funding of abortion if Sebilius wants to do so under the guise of labelling it "women's health care" or "reproductive healthcare".

(1) Nothing in title I of the Affordable Care Act (or any amendments by that title) shall be construed to require a QHP issuer to provide coverage of services described in paragraph (d) of this section as part of its essential health benefits, as described in section 1302(b) of the Affordable Care Act, for any plan year.

How balanced do you believe Catholic hierarchs are when they seek to assert their 1st Amendment religious liberties at the cost of totally ignoring our 14th Amendment guarantees for due process and equality for all under the law?

Wouldn't you say that the Catholic hierarchs' religious liberty claims are more an attempt to recruit the US government in their twisted grail quest to regain their losted ideological control over the contraceptive and reproductive rights of especially women?

Aren't these so-called religious liberty claims of the hierarchs little more than the logical political extention of the Catholic hierarchs' anti-feminine ideology?

It’s an insightful article, and it prompted interesting comments. The five male justices, all Catholics, agree with the U.S. Conference of Catholic Bishops that the First Amendment and the Religious Freedom Restoration Act (RFRA) protect religious rights.

However, the Catholic teachings on contraception (Humanae Vitae) are not enforceable law. All that was settled in the events following the Supreme Court’s opinion in Griswold v. Connecticut, 381 U.S. 479 (1965).

Thus, the question: How then was abortion a viable religious challenge to the contraception mandates? How could a secular business corporation claim a religious right to deny its women employees contraceptive rights granted them by the Affordable Care Act (ACA)?

The corporate answer is simple: Find in the First Amendment and the RFRA a corporate religious right deny its women employees ACA contraceptives insurance coverage if their employer deems any of the contraceptives to be an abortifacient! (The sincerity of the claims is not questioned.)

The exchange between Justice Kennedy and General Verrilli recognizes the illogic of recognizing a corporation’s right to deny its women employees’ freedom to choose between ACA contraceptive benefits when the court itself should be a protector of the women’s rights. I deem that to be Kennedy’s puzzle.

This is an exceedingly stupid comment. Free speech is a choice too, and it has often been used in evil ways (Nazis have free speech too, for example). So nothing whatsoever that you say is a reason to treat corporate owners as still having free speech rights but not freedom of religion.

Wasting Time - you only bloviate and repeat your usual *the sky is falling*. dotCommonweal is noted for those who can develop, analyze, and document their positions - your ad hominems, resorting to useless descriptions such as *exceedingly stupid* only underlines your inability to either state your opinion using some manner of intelligence or the ability to stop and formulate an actual thought.

As many have stated, linked to, etc. case law and SCOTUS have established some freedom of speech for corporations; there is no case law that provides corporations religious liberty. And to just knee jerk that they are the same reveals the shallowness of your *the sky is falling*.

I'm invoking Godwin's Law, from the comment @ 6:01pm (Wasting Time). I'd also suggest to stop feeding the trolls within this topic. I know it's old school internet protocol but it still has it's usefulness.

Godwin's Law is when someone compares someone else to the Nazis; what I said isn't even remotely the same thing.

Bill: "case law and SCOTUS have established some freedom of speech for corporations; there is no case law that provides corporations religious liberty."

If the question is whether the Supreme Court OUGHT to protect religious liberty of corporations, and whether it makes any logical sense to deny religious liberty even while protecting free speech, it is manifestly stupid and illogical to point out that the Supreme Court has not done so before. Yes indeed, but the whole question is whether the failure to do so is justifiable.

On the point of whether for-profit corporations can have religious liberty, anyone who professes to be concerned about religion should consider the implications of denying religious liberty here. As Will Baude points out:

What about an anti-kosher law? Imagine that an antisemitic legislature passes a law forbidding any business corporation from possessing or selling any kosher meat, for no other reason than animus toward Jews. Many butchers, grocers, and restaurants operate through corporations. Does it follow that they would have no ability even to challenge the law on religious grounds? That strikes me as a strange result, and it is not compelled by any precedent. It would make far more sense to say that corporations or the real parties in interest behind them have the ability to make religious-freedom claims, whose sincerity and validity will be judged on the merits.

Is the above result what you think the law should say? No? Then use your head: you don't really think that corporations have zero religious liberty.

Mr. Christopher - Wasting Time appears to have missed your analogy and request; again. Some folks just don't get it but, given that he didn't pick up on your request; doubt that we will see any effort to be analytical - rather, more of the stereotypical fundamentalist, all or nothing, the sky is falling dribble.

Wasting Time - (and you are wasting the time of dotCommonwealers) You continue to mix apples and oranges; fail to make legal distinctions; and your conclusion has no nuance to it.

Kosher - well, corporations are free to provide this or not; the actual impact is determined by its customers....so, the federal government did not need to be involved.

What does that have to do with Hobby Lobby's case - they are arguing that a corporation has religious liberty which would restrict the religious liberity and freedom of their own employees. How is this religious liberty (except in an extremely onesided view)?

Use your head - yes, corporations are not indiviudals; and thus, corporations have *zero* religious liberty.

Mr. Christopher - Wasting Time appears to have missed your analogy and request; again. Some folks just don't get it but, given that he didn't pick up on your request; doubt that we will see any effort to be analytical - rather, more of the stereotypical fundamentalist, all or nothing, the sky is falling dribble.

Wasting Time - (and you are wasting the time of dotCommonwealers) You continue to mix apples and oranges; fail to make legal distinctions; and your conclusion has no nuance to it.

Kosher - well, corporations are free to provide this or not; the actual impact is determined by its customers....so, the federal government did not need to be involved.

What does that have to do with Hobby Lobby's case - they are arguing that a corporation has religious liberty which would restrict the religious liberity and freedom of their own employees. How is this religious liberty (except in an extremely onesided view)?

Use your head - yes, corporations are not indiviudals; and thus, corporations have *zero* religious liberty.

I wrote (several days ago now - sorry, I've been away), "Sixteen different options of free birth control aren't enough?"

To which John Hayes, courteously investing considerably more time and thought in his reply than I had expended in making the original comment, wrote:

They don't all do the same thing. Two that HL objects to are Plan B and ella, which are the morning-after pills. Catholic hospitals use Plan B for rape victims.

The other two are IUDs. The argument from the government is that they are much more effective than birth control pills but are too expensive ($500 to $1000) for many workers to use if they have to pay themselves.

What prompted my original comment was simply the recollection that I've never had a doctor offer me more than two or three alternatives for any of the 'maintenance meds' I take.

I understand the appeal of IUDs. What I'm questioning is the implicit claim that they are so critical to the nation's health that every woman must have them for free. I am pretty certain that, pre-contraception-mandate, the out-of-pocket prices for IUDs weren't out of reach for many or even most women whose insurance plans included a prescription benefit. My own corporate plan offered many different types of birth control in pill form for a copay of $5/month. I believe the Nuvaring was $20/month. The consumer, in consultation with her doctor, would choose the med that had the right combination of features, side effects and price point. If she wanted Nuvaring, she paid a little more.

Food, housing and transportation are basic human rights -- from my point of view, more so than contraception, which in many cases essentially is a lifestyle choice. Government programs assist with food, housing and transportation costs for those who need such assistance. But the SNAP program is not designed to pay for every possible food that a recipient might wish to purchase; its intent is to provide a minimum baseline of nutrition. All of us need transportation but I don't expect the government to give me a Lexus SUV for free, even though its comfort and convenience are much better than those delivered by a public-transportation monthly pass.

Food, housing and transportation assistance from the government is means-tested and provides a basic minimum. The contraception mandate is not means-tested; the wives and daughters of hedge fund billioinaires now get the Nuvaring for free. I suspect that the 16 varieties of birth control for which Hobby Lobby is willing to pay insurance premiums will address the 'needs' of virtually every woman covered by its health care policies. The contraception mandate is a Big Pharma subsidy program cloaked in pieties about women's health care.

Reality - there are complex and multiple variables and issues involved here and to reduce it down to - well, they have 16 choices is neither here nor there. How simplistic, dismissive, and ignorant of medical science, advice, and basic human nature.

Consider: Nearly half of the nation's 6 million-plus pregnancies each year are unintended. Rates of unplanned pregnancies are far higher among low-income women than their wealthier counterparts. Among the reasons is that condoms can fail. So can birth control pills if the woman forgets to take them every day or can't afford a refill.

"How can we cover Viagra and not IUDs?" wonders Peipert, who is leading the new study. (part of the continued insensitivity to one ACA goal - women's health treated just like men's health)

According to the Guttmacher Institute, the average woman who has two children will spend three decades trying to avoid an unintended pregnancy. The Institute of Medicine says that's one reason that women tend to incur higher out-of-pocket costs for preventive care than men.

But some women go through a number of brands before finding one that doesn't cause uncomfortable side effects, says Sarah Brown of the National Campaign to Prevent Teen and Unplanned Pregnancy. Her organization operates a website, http:// www.bedsider.org , that details options along with the price range.

"Not every woman can use generic pills, by any means," Brown says. "Do we say to people, `Just go get generic cardiac medicines. Hope that works out for you?'"

If a family's already struggling financially, "sometimes contraception is one of the first things to fall off,"

If corporations have religious liberty, does that mean that they can practice their brand of religion by refusing to hire any employee who does not meet certain criteria that they feel are necessary to coincide with their religious beliefs (atheists? Jews? gays? Catholics?)? Does it mean that they can require employees o abide by certain religious beliefs and practices, such as attending religious services regularly? On site? Provide proof of doing so? Read only the "Authorized" version of the bible?

2. There is something about this topic that makes you irrational and resort to ad hominems. Please - take a deep breath. Let's keep this civil.

3. Thanks for that link to the NY Daily News article. I find it chock-full of arguments against the contraception mandate. I can provide illustrations if you're interested.

4. Yes, unintended pregnancies are skyrocketing. The casual observer might note that it has been skyrocketing while contraception has been widely distributed, plentiful and inexpensive (for evidence of this claim, cf that NY Daily News article). Apparently you think it is self-evident that the contraception mandate is going to make a substantial difference in this disastrous rise in unintended pregnancies. I say it is not self-evident. Note that I don't say you're wrong about what I think you're assuming - I'm just saying that it's not evident to me that things will pan out that way. If you have any logical arguments, facts or precedents to suggest that the contraception mandate will make a substantial difference in the rate of unintended pregnancies, please go ahead and present them.

5. "How can we cover Viagra and not IUDs?" We're talking about the contraception mandate, which to my knowledge has nothing whatever to do with Viagra, so I am not sure why you thought that was a relevant quote to highlight. If Hobby Lobby's insurance plan happens to cover Viagra, and you find it objectionable that Viagra is covered, the only advice I can give you is to not work there. If an employee of Hobby Lobby objects to that policy, she might recall that it does cover 16(!) other options for birth control. She also has the option of asking Hobby Lobby to add a particular product to its formulary list, and can organize other employees for this purpose. She also retains to the option to get another job.

6. "But some women go through a number of brands before finding one that doesn't cause uncomfortable side effects, says Sarah Brown of the National Campaign to Prevent Teen and Unplanned Pregnancy." There is nothing about the contraception mandate that will change this process. Women will still need to try brands until they find one that works for them. All the contraception mandate will do is subsidize that experimentation. Inasmuch as contraception was subsidized to various extents already - by insurance plans, by private entities like Planned Parenthood, by government funding - then it's quite possible that the contraception mandate will make little or no difference even in out-of-pocket expenditures.

7. "According to the Guttmacher Institute, the average woman who has two children will spend three decades trying to avoid an unintended pregnancy. The Institute of Medicine says that's one reason that women tend to incur higher out-of-pocket costs for preventive care than men." Women are free to use contraception to avoid an unintended pregnancy. That was true before the contraception mandate, and it is still true while the contraception mandate is in effect. Hobby Lobby offers women covered under its health plan more than a dozen different ways to contracept.

8. If a family's already struggling financially, "sometimes contraception is one of the first things to fall off.". If the contraception mandate was a means-tested government entitlement (in fact, it is neither), this case never would have appeared before the Supreme Court. Women who are struggling financially who live in my area were eligible for subsidized contraception before the contraception mandate was enacted.

9. Bill, you're Catholic. I'm Catholic. Here's a suggestion: let's preach the Gospel. Let's preach the virtues of celibacy and matrimony to people who are unmarried. Let's preach the virtues of fidelity, prudence and generosity to people who are married. Something like one out of every five Americans is Catholic. If the Catholic church could be mobilized to proclaim these virtues with dedication and passion, then it might actually make a public policy difference without spending another dime on government transfers or compelling a single company owner to violate her conscience.

This is attributed by some people to "more effective" sex education in schools - more effective, here, meaning not "abstinence only" but "avoid sex before marriage but, if you do have vaginal sex, use condoms and contraceptives" - in Catholic terms, don't sin but if you do, don't get pregnant.

The belief that making contraception free and readily available will reduce abortions and unwanted births is based on studies like this one:

The Contraceptive Choice Project enrolled 9,256 women and adolescents in the St. Louis area between 2007 and 2011. Participants were 14-45 years of age, at risk for unintended pregnancy, and willing to start a new contraceptive method.

Participants had their choice of birth control methods, ranging from long-acting forms like IUDs and implants to shorter-acting methods such as birth control pills, patches and rings.

The women were counseled about the different methods, including their effectiveness, risks and benefits. The extremely low failure rate (less than 1 percent) of IUDs and implants over that of shorter-acting forms (8 percent to 10 percent) was emphasized. In all, about 75 percent of women in the study chose IUDs or implants.

From 2008 to 2010, annual abortion rates among study participants ranged from 4.4 to 7.5 per 1,000 women. This is a substantial drop (62 percent to 78 percent) over the national rate of 19.6 abortions per 1,000 women in 2008, the latest year for which figures are available.

The lower abortion rates among CHOICE participants also is considerably less than the rates in St. Louis city and county, which ranged from 13.4 to 17 per 1,000 women, for the same years.

Among girls ages 15-19 who had access to free birth control provided in the study, the annual birth rate was 6.3 per 1,000, far below the U.S. rate of 34.3 per 1,000 for girls the same age.

While birth control pills are the most commonly used contraceptive in the United Sates, their effectiveness hinges on women remembering to take a pill every day and having easy access to refills.

In contrast, IUDs and implants are inserted by health-care providers and are effective for 5 to 10 years and 3 years, respectively. Despite their superior effectiveness over short-term methods, only a small percentage of U.S. women using contraception choose these methods. Many can't afford the cost of IUDs and implants, which can cost more than $800 and may not be covered by insurance.

"Unintended pregnancy remains a major health problem in the United States, with higher proportions among teenagers and women with less education and lower economic status," Peipert says. "The results of this study demonstrate that we can reduce the rate of unintended pregnancy and this is key to reducing abortions in this country."

For people who don't share the Church's beliefs on the sinfulness of sex outside of marriage and the sinfulness of the use of contraceptives, this seems like a "no-brainer" as a public health program to reduce abortions and unwanted pregnancies.

Which leaves us with the problem of what should the civil law require in a diverse society?

Thanks, John. Still find JP's points to be unpersuasive and no, I am not going nuts....find JP's comments to be one sided, incomplete, and ignorant of facts - that does seem to be another version of *civil* rather than just repeating the typical catholic meme.

You posted a key part of the actual study I linked to - but, that didn't seem to change or impact what JP thinks. He asked for actual documentation, etc. but characterizes this as *irrational*??? I did provide documentation and a study; also quoted from Guttmacher Institute and the Institute for Medicine which has an excellent, objective reputation (yep, they ain't catholic but is that a reason to dismiss them?)

Fact - more than half of all unwanted pregnancies can be linked to poverty. So, there is a purpose to why the PPACA has tried to move contraceptives especially for women into the wellness/health area with no co-pays (oh yeah, one part of pro-life is the fact that over the past 4-5 years, the current health approach has reduced unwanted pregnancies and therefore abortions much more effectively than all of the anti-abortion stuff put together).

Fact - not every contraceptive is effective or works across all women. I linked to the facts of various studies that show that the most effective contraceptives cost the most; last from 3-5 years and thus aren't something that can be quickly forgotten in a moment of passion. So, yes, any woman can try various contraceptives (JP - you do realize that each time you change, the chances to stop use, forget, etc. goes up) and that some of the most effective contraceptives are the ones that Hobby Lobby wants to not pay for. (You equate access with freedom to use - again, the facts above about poverty, etc. may this argument about *access* to be a misnomer).

Means tested - good point but, unfortunately, not every area, state, etc. would ever agree to what Chicago or Cook County does. Thus, the reason for the PPACA.

You state - women can always contracept - this was true before the ACA and Hobby Lobby isn't stoppiing this. Again, you are fixated on one train of thought and are not listening to the documented experiences that this one, rigid approach has repeatedly failed. Fact - not every contraceptive works for women; most effective may not be covered by Hobby Lobby if they get their way. So, their religious liberty trumps others? (I know, but they still have access to less effective methods or they will just have to put up with side effects.)

You mention *subsidies via various programs* - well, again, studies have proven that these programs do work but are not universal; are too often completely missing in the most needed regions, areas, states. And you ignore current efforts state by state to eliminate or effectively limit some of these very organizations. (nothing like talking out of both sides of your mouth)

Viagra - okay, inserted to again put into relief the fact that Hobby Lobby, etc. only focus on women's contraception methods and ignore any type of reproductive/sexual medications for males. This does not appear to bother you because Hobby Lobby hasn't made this a point of contention. Guess you missed my point.

And you repeat a number of times - the female employee has 16 options and can always petition that the formulary be changed....do you realize how ridiculous that statement is? Hobby Lobby is fighting the right to not cover these contraceptives - so, you think they will make an exception to their formulary?

Finally, the study that I linked to and which John has highlighted actually contradicts your opening statements. Unwanted pregnancies have been declining for 4+ years (facts again, JP). And the study indicates that a part of this success is the use of the most effective contraceptive methods that are covered and paid for (so that human nature, behaviors, financies, etc. don't impact this pattern on a week by week basis). Facts again, JP.

Yes, I do think that a standardized approach to contraception across the USA will impact unwanted pregnancies (see the study we both linked to - can you provide counter documentation?).

You ask for *preaching the gospel* - that is what I am trying to do in terms of catholic social teaching. You start with where people are at (not a set of rules); you provide education that respects the inherent dignity of the poor, the uneducated and you give them the means to understand and choose (one of the highest gospel values)....anything else is coercion. So, yes, I argue for Bernardin's seamless garment - pro-life across all aspects of society rather than a very limited and to date highly unsuccessful anti-abortion campaign that too often doesn't feel or sound much like the GOSPEL.

JP - provided a number of links and documentation....you did none of that. And yet you criticize me?? really?

For people who don't share the Church's beliefs on the sinfulness of sex outside of marriage and the sinfulness of the use of contraceptives, this seems like a "no-brainer" as a public health program to reduce abortions and unwanted pregnancies.

I don't mean by that that people like the Greens (the Hobby Lobby family) shouldn't have the right to argue that even if the contraception mandate does have those good results, their sincere religious belief is that they should not provide coverage for four of the contraceptives.

Or Catholics from arguing that their sincere religious belief is that they should not provide coverage of any contraceptives.

The court will then have to decide if the government's interest in having such a program outweighs the burden it places on those employers' exercise of their sincere religious beliefs

John, thanks. Bill's remark to which I responded didn't refer to unplanned teen pregnancies, it referred to unplanned pregnancies. This Guttmacher Institute fact sheet from last year, which considers data through 2008, shows that unintended pregnancies have increased overall since 1981 - but have decreased substantially among women at >200% of the poverty level. (It also notes some of the decline in teen unintended pregnancies to which you refer.) Note that living in a household of four at or greater than 200% of the poverty level in 2008 would mean (roughly speaking) that a woman is in one of the upper three income quintiles - in other words, a majority of American women. And of course this decrease in unintended pregnancies among a majority of women occurred without the assistance of the contraception mandate. These are the women who have good gynecological care and can afford to pay for IUDs. The case for giving them IUDs for free doesn't seem to be supported by the numbers.

Bill is presenting arguments for which the apparent contraception-oriented solution would be a means-tested and/or demographic-targeted contraception subsidy. But the solution he's defending, the contraception mandate, isn't a means-tested or demographic-targeted program. It gives contraception for free to the group - the majority of American women - who apparently don't need it for free. In the view of Hobby Lobby, the mandate is also impinging on its owners' consciences.

The St. Louis study to which you referred has been discussed, and critiqued, on dotCom in the past - possibly before you were commenting here? Presumably those discussions are still in the archives if you wish to see what was said about it before. In addition to whatever methodological flaws the study may or may not have had, it is a study of a demographically targeted group, and the methods of distributing birth control to the group studied don't conform to the methods utilized by the contraception mandate. In my view, the outcome of that study isn't strongly predictive of the outcomes we can expect from the contraception mandate. As I remarked to Bill, I don't consider it self-evident that the contraception mandate will address the problems that Bill believes it will address.

And it addresses situations that, quite frankly, aren't problems. It doesn't take an expert in demographics or reproductive science to understand the political appeal of the contraception mandate. Women who use contraception would rather pay less for contraception than pay more, and would rather have it for free than pay anything. Conservatives have many critiques of public assistance programs: they're poorly targeted, they're inefficient, they promote unvirtuous living, they're a temptation for public officials, government vendors and recipients to engage in untoward political influence and even corruption. The contraception mandate is somewhat unique in that it doesn't involve direct government transfer payments, but it certainly exhibits all of these traits. And in the view of a number of employers, it also violates their religious liberty.

The contraception mandate is a gigantic social experiment. Here is my prediction of social outcomes:

* Unintended pregnancies may level off or even decrease marginally

* Out-of-wedlock births will continue to increase, perhaps at a decreasing rate

* Abortion rates will continue to decline or level off, as they were before the contraception mandate

Naturally, as a deacon of the Catholic Church, I am also obligated to consider the spiritual aspects of public policies. The contraception mandate, if it's effective, will help enable sinful behavior on a vast scale. If it's ineffective - then it's just bad public policy, but still puts the government in the position of officially supporting sinful behavior on a vast scale. And all this while, in the opinion of some religiously oriented employers, violating their religious liberty.

You state - women can always contracept - this was true before the ACA and Hobby Lobby isn't stoppiing this. Again, you are fixated on one train of thought and are not listening to the documented experiences that this one, rigid approach has repeatedly failed. Fact - not every contraceptive works for women; most effective may not be covered by Hobby Lobby if they get their way

I'm skeptical that, given 16 other options, none will be effective. Perhaps there will be a very small subset of women covered by Hobby Lobby's plan for whom this will be true (although, frankly, I doubt there would be even one). Those women, if there are any, can pay for something different.

And you repeat a number of times - the female employee has 16 options and can always petition that the formulary be changed....do you realize how ridiculous that statement is? Hobby Lobby is fighting the right to not cover these contraceptives - so, you think they will make an exception to their formulary?

No, it's not ridiculous. There are more than 16 brands of birth control on the marketplace that Hobby Lobby apparently doesn't find objectionable. Women always have the right to request additional brands be addded to the formulary list. I happen to have witnessed that very thing in my own work life, so I know it's not ridiculous.

And women have other options. One is to go work somewhere else. Another is to live as the Catholic church wishes women and men to live: to live lives of continence when they are unmarried, and to live lives of fidelity, prudence and generosity when they are married. Perhaps it's not for the government to exhort women and men to live this way. But it is for us as baptized members of the Body of Christ to promote this way of living.

- These companies include Teva Pharmaceutical Industries, which makes Plan B and ParaGard, a copper IUD, and Actavis, which makes a generic version of Plan B and distributes Ella. Other holdings in the mutual funds selected by Hobby Lobby include Pfizer, the maker of Cytotec and Prostin E2, which are used to induce abortions; Bayer, which manufactures the hormonal IUDs Skyla and Mirena; AstraZeneca, which has an Indian subsidiary that manufactures Prostodin, Cerviprime, and Partocin, three drugs commonly used in abortions; and Forest Laboratories, which makes Cervidil, a drug used to induce abortions. Several funds in the Hobby Lobby retirement plan also invested in Aetna and Humana, two health insurance companies that cover surgical abortions, abortion drugs, and emergency contraception in many of the health care policies they sell.

- The Green's contention that the pills cause abortions is a central pillar of their argument for gutting the contraception mandate. Yet, for years, Hobby Lobby's health insurance plans did cover Plan B and Ella. It was only in 2012, when the Greens considered filing a lawsuit against the Affordable Care Act, that they dropped these drugs from the plan.

- All nine funds—which have assets of $73 million, or three-quarters of the Hobby Lobby retirement plan's total assets—contained holdings that clashed with the Greens' stated religious principles.

Finally, JP, my gospel imperative approach is borrowed from Francis - you start with the periphery; you go out to the poor; you don't preach AT them; and who am I to judge? Your only response was to quote from the catechism that there is no catholic social teaching that supports women contracepting. You miss the whole point; you miss the essential dignity of the person making that choice; you immediately skip down to the law. Love trumps Law every time.

"..... plumbed the depths of the impoverished libertarian vision; what I find baffling about Ryan's proposal is its purported moral (and even religious) message. It seems like nothing more than a mobilization of the Calvinist distinction between the damned and the Elect. And what a wonderful world in which to be one of the latter. Has conservative Catholicism crossed over to the side of radical puritanism?" (apply to the Green's and Hobby Lobby and the Becket Fund)

Or, how about another dotCommonweal post from Cathleen Kaveny - is this preoccupation with female contraception and birth control more and more like a *CULT"

Jim, there was a discussion in which "Stuart Buck" and Larry Weisenthal were the main protagonists (the original post was by Eduardo Peñalver). One of the near-final posts sums up Larry's assessment that there is an adequate scientific basis for the contraception mandate.

Even if there is an adequate scientific basis, there is still a legitimate argument that the government's interest in having such a program doesn't outweigh the burden on people who sincerely believe that it would be wrong for them to pay for coverage of some or all contraceptives for their employees. That's the issue that the courts will decide.

However, I think it is more effective to focus on the religious freedom argument than to debate whether the contraceptive mandate will accomplish what the government's medical experts hope it will.

Larry Weisenthal October 9, 2012 - 5:38pm

To bring the current discussion around to a relevant and timely topic, extensively discussed on Commonweal in the recent past, many conservative critics of ObamaCare object to the mandate to cover contraceptive counseling and services. These critics state that contraceptives are either free or inexpensive, and that it is an unnecessary assault on religious freedom to have a regulation that insurance companies are required to offer private, third party contracts to employees for a rider to their employer-provided policies to pay for these contraceptive services.However, the current study confirms reasonable expectations that "bullet-proof" forms of contraception are dramatically effective in reducing both teenage pregnancy and abortion rates. It should be recalled that this contraception mandate was not a nefarious assault on religious liberties hatched by the evil Sibelius/Obama duo, but was rather the unanimous recommendation of the doctors on the evaluation committee tasked by the highly-respected (and independent/non-partisan) Institute of Medicine to carry out this evaluation. The Obama administration was simply following this recommendation.The "bullet-proof" contraception methods do not have trivial costs, which is why the Institute of Medicine recommended that coverage for contraception be included.Those who are very concerned about the high incidence of abortion in this country should seriously consider the claim that prohibiting employers from preventing their employees from entering into private third party contracts is really a serious infringement on religious liberty. They should then consider the relative degree of evil associated with contraception on one hand and abortion on the other hand.- Larry Weisenthal/Huntington Beach CA

there is no Catholic social teaching that supports women contracepting to avoid unintended pregnancies.

Religious Sisters in war-torn areas?

Unmarried women who run regularly in inner-city parks?

Or as one poster said in that 2012 thread:

I'm a Catholic who appreciates the internally consistent logic of the Church's teaching on contraception while respectfully disagreeing that such logic can or should be applied universally and without exception. (If any Christian ideal ever called for Niebuhrian realism, this does.) I'm also a pediatrician who has prescribed adolescents contraception when medically appropriate. There are countless reasons medical, social, developmental, and moral why adolescents should not be having sex, but one doctors advice, however reasonable, is unlikely to persuade a teenager that s/he can wait when nearly everything else in American culture is saying otherwise. I've come to see contraception in this age group as a form of harm reduction

Having 10,000 spoons when you need a knife isn't sufficient. Hobby Lobby objects to two types of birth control (IUD and emergency contraception) that have properties that are not available from the approved contraceptives. This is about being given a hammer instaed of a screwdriver rather than being given Pepsi rather than Coke.

Also, there is plenty of Catholic social teaching that supports women using contraception to avoid unwanted pregnancies. Catholicism is a far more diverse set of creatures than that which can be found under a miter.

John - I assume those examples you gave are to protect women who are at greater-than-average risk of rape. Let's agree that those situations are not typical of most women who are covered by the contraception mandate. However, you're right that I should have included the word "consensual" in my remark to Bill.

Bill - I strongly agree that we need to meet people where they are. We meet them where they are for the purpose of beckoning them to the holier way of living that citizenship in the kingdom of heaven entails. We invite them to encounter the Jesus who, after an extraordinary display of non-judgment, admonished a sinner, "Go, and sin no more." We don't meet them in darkness in order to further immerse them in darkness, but to beckon them into the light.

If a man or woman is immorally sexually active, offering them contraception does nothing to address the sinfulness of the situation - and in fact, it may enable the sinfulness of the situation. I recognize that this is not a public policy observation. Yet it is surely what we as individuals and as a church have a responsibility for. And really, we shouldn't be blind to the connection between widespread sinful behavior, in the forms of unfaithful, imprudent, and/or non-marital sex, and the resultant public policy difficulties: unintended pregnancies, pregnancies to unmarried women, and the host of problems that follow from these - and that follow from them in an age of widespread contracepting.

The difficulty for Christian advocates of contraception is that it doesn't seem possible to advocate a policy of universally free contraception without also enabling sinful situations that are antithetical to our Christian moral code. How do you resolve that contradiction?

John - I assume those examples you gave are to protect women who are at greater-than-average risk of rape.

The first two are. I included the third one, which was posted by a pediatrician in the 2012 thread you referred me to, because I wondered what you thought of his position

Essentially, he says that he agrees with the Church's teaching on contraception, but he prescribes contraceptives for adolescents (presumably unmarried) who may end up having consensual sex because their emotions overcome the advice he gives them about avoiding pre-marital sex. He says "I've come to see contraception in this age group as a form of harm reduction."

John - regarding that physician's approach: I certainly wouldn't condemn him. I more or less agree with his analysis. I give him credit for doing his best in a difficult position.

Where I might (but only might) disagree with him on the passage you've quoted, is that I suspect he discounts too much the influence he might have on an adolescent. I would urge him to go ahead and give good advice, even when he suspects that (if I may use this metaphor in this context) the seed of his advice might be falling on barren soil. And even then: speaking as a parent, I know that sometimes we must pick our spots wisely to give advice to a teen that may not be predisposed to hear it.

Is there a moral difference between my prescribing contraceptives reluctantly, with the patient (and in the case of an adolescent patient, presumably the patent's parents) understanding my reluctance, and my prescribing it enthusiastically, with the patient being given to understand that it is an unbridled medical good? I think there may be.

John - I don't know of any magisterial teaching on the use of artificial contraception by unmarried persons.

HV analyzes contraception as it affects marital sex, which is thought to have a profoundly spiritual, sacramental meaning.

Naturally, that meaning is thought to be absent from non-marital sex. So I think it would be difficult to criticize artificial contraception on that basis.

The problem I usually raise in these conversations is that the use of contraception may enable the non-marital sex. But that's just my personal opinion, and nobody possesses less teaching authority than me. But the key moral problem from the church's point of view is not the contraception per se, it's the non-marital sex.

From the point of view of public policy, I'm skeptical that contraception is the magic bullet. On the one hand, family size in the US has shrunk since artificial birth control became widespread - that suggests that, at a macro level, contraception "works" - presumably, contraception is at least a contributing factor to smaller families. Yet abortions also increased for many years and now have more or less leveled off, and out of wedlock births now seem to be climbing, both of these trends occuring while artificial birth control has been widespread. They suggest that, at a macro level, contraception "doesn't work". Probably, if we drilled down to particular demographic profiles, we'd see that all of these things - abortion, out of wedlock births, family size - vary according to demographic characteristics, whether that's economic class, geographic region, and/or something else like race and ethnicity or age.